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EXHIBIT 10.20
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of January 1, 1996, by and
between AMERICAN NATIONAL CAN COMPANY, a Delaware corporation (the "Company"),
and XXXX-XXXXXX XXXXXX (the "Executive").
WHEREAS, the Company is a member of an affiliated group of
corporations (the "Pechiney Group") of which Pechiney, a societe anonyme
organized under the laws of France ("Pechiney"), is the parent corporation; and
WHEREAS, the Board of Directors of the Company (the "Board")
has appointed the Executive as its Chief Executive Officer; and
WHEREAS, the compensation committee of the conseil
d'administration (board of directors) of Pechiney (the "Pechiney Board"),
following the privatization of Pechiney, reviewed and adjusted the Executive's
overall compensation level for services rendered to the Pechiney Group, taking
into account, among other things, compensation practices and incentives provided
at other corporate groups that are comparable, in business and size, to the
Pechiney Group; and
WHEREAS, in view of the services that the Executive has
performed and will continue to perform on behalf of the Company as its Chief
Executive Officer, the contributions the Executive is expected to continue to
make to the Company's businesses and affairs, and the Executive's overall
compensation from the Pechiney Group, the Board has determined that it is
appropriate and in the best interests of the Company and its stockholder to set
forth in an employment agreement the terms and conditions of the Executive's
employment with the Company and his compensation therefor;
NOW, THEREFORE, in consideration of the covenants and
agreements herein contained, the parties hereto hereby agree as follows:
1. Employment and Duties.
(a) Position.
The Company hereby agrees to employ the Executive, and the
Executive agrees to be employed during the Term (as hereinafter defined) and
upon the terms and conditions hereinafter set forth, as Chief Executive Officer
of the Company. The Executive further agrees, if elected or appointed, to serve
for no additional compensation as an officer of any of the Company's United
States affiliates or subsidiaries.
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(b) Duties and Reporting.
The Executive shall have general and active management and
control of the business and affairs of the Company, and shall have all the
powers, duties and responsibilities typical of the chief executive officer of a
United States corporation similar to the Company in business and size, including
overall responsibility for strategic planning, budgets and executive and
personnel management. In addition, the Executive shall have such other
managerial duties as the Board may from time to time assign to him consistent
with his status as Chief Executive Officer. In his capacity as Chief Executive
Officer, the Executive shall report directly to the Board.
(c) Understandings Concerning Residency
The Executive represents and warrants to the Company, and the
Company acknowledges, that the Executive is, and intends to remain, a citizen
and permanent resident of France. The Company acknowledges and agrees that under
no circumstances will the Executive's duties hereunder require him to spend more
than 99 days in any calendar year in the United States Nothing in this Agreement
shall be construed to require the Executive to establish or maintain a residence
in the United States.
2. Term of Employment.
The term of the Executive's employment under this Agreement
(the "Term") will commence on January 1, 1996 (the "Effective Date") and shall
continue for an initial period of two years. On the first anniversary of the
Effective Date (and on each subsequent anniversary date thereafter), the Term
shall automatically renew for an additional year unless, within ninety days
prior to the applicable anniversary date, either party shall have given the
other party hereto written notice of the intention not to so extend the Term;
provided, however, that the Term shall not extend beyond the last day of the
month in which Executive attains age 65.
3. Compensation and Benefits.
(a) Salary.
The Company shall pay to the Executive during the Term an
annual base salary equal to $________. The Executive's salary may be adjusted
(upward or downward) periodically by the Board. The Executive's annual base
salary will be payable in accordance with the Company's normal payroll
practices, unless the Executive and the Board agree to another payment schedule.
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(b) Bonus.
The Executive shall be paid a bonus (the "Bonus") for each
full or partial calendar year during the Term, beginning with 1996. The amount
of the Bonus shall be determined by the Board in its discretion based on the
Executive's performance, taking into account the financial results of the
Company and any other considerations that the Board considers appropriate,
provided, however, that the Bonus for any calendar year shall not exceed 50% of
the Executive's annual base salary for that year. The Bonus will be paid to the
Executive in accordance with the Company's normal payment practices for bonuses
as soon as practicable after the amount has been determined as provided in the
preceding sentence.
(c) Regular Reimbursed Business Expenses.
The Company will reimburse the Executive for all reasonable
business-related expenses incurred by him in the performance of his duties for
the Company.
(d) No Participation in Benefit Plans. The Executive
acknowledges that as an officer of Pechiney he participates in retirement,
medical and other benefit plans or arrangements sponsored by Pechiney or
otherwise provided for Pechiney officers pursuant to applicable French law and
custom. Consequently, the Executive agrees with the Company that, except as
otherwise specifically agreed to by the Company, he will not be eligible to
participate in any retirement, severance, medical (including, without
limitation, major medical, health and hospitalization), dental, disability, life
insurance or other welfare or fringe benefit plan sponsored by the Company for,
or otherwise applicable to, its officers. In addition, the Executive will not be
eligible to participate in any cash-based incentive programs applicable to other
officers of the Company, and his cash incentive compensation will instead be
determined exclusively as provided in Section 3(b) of this Agreement. The
Executive hereby waives any right he might have to participate in any of the
plans, programs or arrangements described in the preceding two sentences and
consents to the Company's amendment of any such plan, program or arrangement to
exclude his participation therefrom.
(e) Paying Agent Arrangement. The Executive and the Company
acknowledge that from the Effective Date and until November 30, 1996, Pechiney
has acted as the Company's paying agent for purposes of paying the compensation
provided for in this Agreement. Until the Company implements procedures to
provide the compensation provided herein for the Executive (which is expected to
occur no later than December 1, 1996), Pechiney will continue so to act. The
Executive acknowledges and agrees that compensation payments received or to be
received by him from Pechiney will, to the extent of the Company's obligations
hereunder, be considered to satisfy such obligations and that he will have no
further claim against the Company with respect to such amounts.
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4. Termination of Employment
(a) General. Subject to the provisions of this Section
4, the Company shall have the right to terminate the Executive's employment with
the Company, and the Executive shall have the right to resign therefrom, at any
time for any reason or for no reason.
(b) Termination by the Company Other Than for Cause. If
the Executive's employment is terminated by the Company other than for Cause (as
hereinafter defined) prior to the end of the Term, the Executive shall be
entitled to payment of the following:
(i) any unpaid annual base salary earned or accrued but
not paid through and including the date of such termination;
(ii) any unpaid Bonus for a prior year; and
(iii) a severance payment (the "Severance Payment") the
amount of which shall be determined by the Board at the time
of termination of the Executive's employment but which shall
not exceed two times the Executive's rate of annual base
salary in effect as of the effective date of termination of
employment; provided, however, that the Executive shall not be
entitled to the Severance Payment unless (A) his employment
shall have been terminated not simply with the Company but
with all members of the Pechiney Group and (B) the Pechiney
Board shall have authorized the payment to the Executive of
severance (or other benefit in the nature of severance pay) by
Pechiney or another member of the Pechiney Group.
The Severance Payment and all other amounts required under this Section
4(b) shall be paid to the Executive in a lump sum within thirty (30)
days after the effective date of his termination of employment.
(c) Definition of "Cause". For purposes of this
Agreement, "Cause" means:
(i) The commission by the Executive of any act or
omission that would constitute a faute lourde under the labor
laws of the Republic of France with respect to his employment
by the Company or any member of the Pechiney Group; or
(ii) The Executive's conviction of, pleading guilty to or
indictment for (where such indictment is not dismissed or
otherwise resolved favorably to the Executive within six
months) a fraud against the Company or any other member of the
Pechiney Group or a felony.
The Executive shall be permitted to respond and defend himself before the Board
within fifteen (15) days after written notification of any proposed termination
for Cause which shall specify in detail the reasons for termination.
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5. Indemnification.
(a) Insurance.
To the extent permitted by applicable law, the Company shall
maintain directors' and officers' liability insurance sufficient to protect the
Executive against all costs, charges and expenses (including attorneys' fees)
incurred or sustained by him in connection with any action, suit or proceeding
to which he may be made a party by reason of being an officer, director or
employee of the Company or any of its subsidiaries; provided, however, that such
insurance shall not apply with respect to (i) criminal acts, acts of gross
negligence or willful misconduct by the Executive or (ii) such other risks as
are customarily excluded by directors' and officers' liability insurance
policies. The insurance coverage required by this Section 5(a) must survive for
the duration of any statute of limitations applicable to any such action, suit
or proceeding or, if earlier, until the termination of all similar insurance
coverage for officers and directors and former officers and directors of the
Company.
(b) Indemnity.
The Company shall indemnify and hold harmless the Executive to
the fullest extent permitted by law with respect to any act or omission
committed by the Executive in the performance of his duties hereunder. Amounts
payable pursuant to such indemnity shall be paid as the related expense or
liability arises. The Company hereby represents that, as of the Effective Date,
its by-laws and articles of incorporation provide the Executive with the maximum
limitation of the Executive's liability permitted by applicable law. The
obligations of this Section 5(b) shall survive the termination of the Term and
this Agreement.
6. Tax Withholding.
All amounts payable to the Executive pursuant to this
Agreement shall be subject to all legal requirements with respect to the
withholding of taxes. The Company recognizes that the Executive may perform
services for the Company and its affiliates in many jurisdictions. In connection
therewith, the Company agrees to withhold taxes out of amounts payable to the
Executive and file applicable tax reports as advised by in-house or outside
counsel to the Company.
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7. Source of Payments.
Except to the extent contemplated by the paying agent
arrangement set forth in Section 3(e), all payments provided under this
Agreement shall be paid in cash from the general funds of the Company. No
special or separate fund shall be established, and no other segregation of
assets made, to assure payment of an amount provided for hereunder. The
Executive shall have no right, title or interest whatever in or to any
investments which the Company may make to aid the Company in meeting its
obligations hereunder. Nothing contained in this Agreement, and no action taken
pursuant to its provisions, shall create or be construed to create a trust of
any kind, or a fiduciary relationship, between the Company and the Executive or
any other person. To the extent that any person acquires a right to receive
payments from the Company hereunder, such right shall be no greater than the
right of an unsecured creditor of the Company.
8. Notices.
All notices, requests, consents or other communications
required or permitted to be given hereunder shall be in writing and shall be
given in writing by personal delivery, telex, telecopy or certified or
registered mail, return receipt requested, to the applicable address set forth
below, or to such other address as either party shall furnish in writing to the
other:
(i) To the Company: American National Can Company
0000 Xxxx Xxxx Xxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Corporate Secretary
with a copy to: Pechiney
Immeuble Xxxxxx
00, xxxxx xxx Xxxxxx
Xx Defense 5 -- Courbevoie,
Xxxxx xx Xxxxx
Xxxxx 00
00000 Xxxxx la Defense
Attention: Directeur des
Affaires Juridiques
(ii) To the Executive: Xxxx-Xxxxxx Xxxxxx
c/o Pechiney at the address
indicated above
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9. Entire Understanding.
This Agreement constitutes the entire understanding between
the Company and the Executive relating to the employment of the Executive by the
Company and supersedes and cancels all prior negotiations, understandings and
agreements.
10. Assignment and Delegation.
Neither this Agreement nor any right, duty or obligation
hereunder shall be assignable or delegable by the Executive. This Agreement and
all the Company's rights and obligations hereunder may be assigned, delegated or
transferred by it to any business entity which at any time by merger,
consolidation or other business combination acquires all or substantially all of
the assets of the Company or to which the Company transfers all or substantially
all of its assets. Upon any such assignment, delegation or transfer, any such
business entity shall be deemed to be substituted for all purposes as the
Company hereunder, except that the Company shall not be released from any of its
obligations hereunder.
11. Amendment and Waiver.
This Agreement may not be modified, amended or waived in any
manner except by an instrument in writing signed by the Executive and the
Company, pursuant to a resolution of the Board. The waiver by either party of
compliance with any provision of this Agreement by the other party shall not
operate or be construed as a waiver of any other provision of this Agreement or
of any subsequent breach by such party of a provision of this Agreement.
12. Counterparts.
This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
13. Headings.
The headings of the Sections of this Agreement are included
solely for convenience of reference and shall not be construed or interpreted in
any way as affecting the meaning of such Sections.
14. Governing Law.
This Agreement is governed by, and construed and interpreted
in accordance with, the laws of the State of Illinois.
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15. Severability.
Each provision hereof is severable from this Agreement, and if
one or more provisions hereof are declared invalid the remaining provisions
shall nevertheless remain in full force and effect. If any provision of this
Agreement is so broad, in scope or duration or otherwise, as to be
unenforceable, such provision shall be interpreted to be only so broad as is
enforceable.
16. Condition Precedent
The obligations of the parties hereunder, including without
limitation the Company's obligations under Section 3, shall be conditioned upon
the making of any filing, and the obtaining of any consents or approvals,
required under applicable law, including any applicable visa, work permit or
similar authorization of the United States or any of its instrumentalities.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the 1st day of January, 1996.
AMERICAN NATIONAL CAN COMPANY
By:
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Name:
Title: Director, acting pursuant to
resolution of the Board of
Directors
EXECUTIVE
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